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Woman's breast cancer malpractice case dismissed

In Edry v. Marc Adelman, et al., the plaintiff sued her doctor for failing to diagnose and treat breast cancer after he found a three millimeter node on her breast during a routine exam but failed to act.   The doctor didn't diagnose the problem or send her for any further tests for almost 20 months.  Ms. Edry claimed that his delay in acting from June, 2003, to February, 2005, resulted in a reduction of her probability of survival from 95 percent to less than 20 percent, and she presented an oncologist's testimony to support her claim. 

The Defendant's insurer hired a physician expert who testified that her probability of survival was still sixty percent in 2005, and therefore she could not show a "greater than fifty percent loss of the opportunity to survive" as required by a tort "reform" statute.  He agreed that Edry had a 95 percent probability of survival if the cancer had been diagnosed in 2003, but claimed that Edry's oncologist was outside the mainstream of medicine in positing a 20 percent probability of survival based upon her positive lymph nodes.  The trial judge accepted the Defendant's expert's testimony and dismissed Ms. Edry's claim.

The appellate court ruled that Edry's malpractice claim was properly dismissed.  It held that based upon the Defendant's expert witness testimony, Edry's oncologist's numbers were not commonly accepted in the medical community, and that as a result, Edry's expert's opinion testimony was properly stricken from the record.  Further, it held that since Edry was still alive at the time of the hearing, she could not recover for the statistical probability of a loss of survival in any event.  It cited a ruling of the Engler Majority  in 2001 in which the Engler Justices had held that a living plaintiff cannot recover for loss of an opportunity to survive on the basis of a decrease in her chances of long-term survival--even if the loss of probability is from 99 percent to one percent.

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